Commonwealth v. Katona, D., Aplt. ( 2020 )

[J-83-2019]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 1 WAP 2019
:
Appellee : Appeal from the Order of the
: Superior Court entered June 14,
: 2018 at No. 1995 WDA 2014,
v. : affirming the Judgment of Sentence
: of the Court of Common Pleas of
: Westmoreland County entered
DENNIS ANDREW KATONA, : November 10, 2014 at No. CP-65-
: CR-0002549-2011.
Appellant :
: ARGUED: October 15, 2019
OPINION
JUSTICE DOUGHERTY1 DECIDED: OCTOBER 21, 2020
We granted discretionary review in this case to consider the Superior Court’s
application of the Independent Source Doctrine as a basis for upholding the trial court’s
order denying the suppression motion filed by appellant Dennis Andrew Katona. We also
granted review to consider, as a secondary matter, the validity of an intercept order issued
under Section 5704(2)(iv) of the Wiretapping and Electronic Surveillance Control Act
(“Wiretap Act”),2 which permits the recording of in-home conversations when only one
party consents, so long as the intercept is approved by an authorized prosecutor and the
president judge of a court of common pleas finds that probable cause supports the order.
Upon review, we conclude the Superior Court properly invoked the Independent Source
1 This matter was reassigned to this author.
2 18 Pa.C.S. §§5701-5782.
Doctrine, and therefore do not reach the various statutory and constitutional challenges
appellant raises relative to the Wiretap Act.
I. Background
As appellant’s claims concern only the admissibility of the evidence discovered as
a result of the execution of a search warrant at his residence on June 29, 2011, we focus
our discussion on the facts as set forth in the affidavit of probable cause supporting the
issuance of the warrant. That affidavit, which is twenty-one pages long and divided into
forty-seven numbered paragraphs, established the following.
In 2009, the Pennsylvania State Police (“PSP”) began working with a confidential
informant (“CI”) who was a member of the Pagan Motorcycle Club. The CI, who had
previously provided reliable evidence in other criminal investigations, informed Trooper
Matthew Baumgard that appellant was also a member of the Pagans, including serving
as its National President in 2009. This information corroborated PSP’s own knowledge
of appellant as a longtime member of the Pagans who had previously been convicted for
organizing an attack in Long Island, New York, against a rival motorcycle club known as
Hells Angels.
On April 28, 2011, the CI contacted Trooper Baumgard to alert him appellant had
unexpectedly arrived at his house that evening and offered to sell him three one-half
ounce packages of cocaine for $650 per package. The CI declined the offer, informing
appellant he had just purchased cocaine from “Tony” and that he was dissatisfied with
the price and quality of that purchase. The following day, the CI again reached out to
Trooper Baumgard, this time to inform him appellant had made a similar unsolicited stop
at another Pagan member’s house in an attempt to sell the cocaine.
Several weeks later, on May 16, 2011, the CI phoned Trooper Baumgard to inform
him appellant had invited the CI to appellant’s home. Shortly after arriving, appellant told
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the CI he had something to show him and directed the CI to a bedroom at the top of the
stairs. There, appellant retrieved a package containing one-half pound of cocaine from a
dresser drawer, and explained to the CI he had obtained it specifically for him given his
dissatisfaction with “Tony’s” product. Appellant offered the entire package to the CI in
exchange for $9,800, with the expectation he would pay $5,000 for it later that night with
the remainder to be paid over time. The CI took the cocaine, left appellant’s home,
immediately called Trooper Baumgard and turned it over to the PSP.
Based on this information and the fact the product tested positive for cocaine, the
Commonwealth, represented by the Office of the Attorney General (“OAG”), applied for
an order authorizing a consensual wiretap that would allow the CI to wear a recording
device inside appellant’s residence, pursuant to 18 Pa.C.S. §5704(2)(iv).3 The Honorable
John Blahovec of the Court of Common Pleas of Westmoreland County granted the order
later that day. Of relevance here, the order authorized continuous interceptions of all in-
home conversations for a period of thirty days. See Order Authorizing the Consensual
Interception of Oral Communications in a Home, 5/16/2011, at 4.
Pursuant to the wiretap order, the CI visited appellant in his home multiple times
over the following month and a half and recorded the ensuing conversations.4 On May
16, 20, 25, and 31, 2011, the CI made various controlled payments to appellant in his
home, with the cash having been provided to the CI by the authorities. During each
encounter, Trooper Baumgard and his team surveilled appellant’s home and, thereafter,
met with the CI to retrieve the recording device.
3 We set forth the statutory text of this provision infra.
4The Commonwealth obtained an extension of the wiretap order after the initial thirty-day
period expired.
[J-83-2019] - 3
On June 9, 2011, the CI met with appellant to purchase Pagan T-shirts; Trooper
Baumgard asked the CI to inquire during that meeting about purchasing two additional
ounces of cocaine. Following the encounter, the CI produced several Pagan T-shirts and
a clear vacuum sealed bag containing a white powdery substance which was later
confirmed to be cocaine. The CI related to Trooper Baumgard that he had purchased the
T-shirts from appellant and that, during their conversation, appellant retrieved the two
ounces of cocaine and requested $2,200 for it. Additionally, the CI indicated to Trooper
Baumgard that appellant had offered to sell him an ounce of methamphetamine for
$1,300. Later that evening appellant arrived at the CI’s home, which was under
surveillance, and delivered an ounce of methamphetamine in exchange for $1,300.
Similar transactions occurred over the following weeks. On June 13, 2011, the CI
made a controlled payment of $1,100 to appellant for the cocaine that was “fronted” on
June 9, 2011. On June 15, 2011, in addition to paying another installment for the cocaine
supplied on June 9, 2011, the CI purchased two more ounces of cocaine. Although this
delivery occurred in a Home Depot parking lot, the CI subsequently paid for the product
at appellant’s home on June 20, 2011. On June 22, 2011, appellant provided the CI with
still more cocaine. Immediately after the CI left appellant’s home on this occasion, he
provided Trooper Baumgard with four vacuum sealed bags containing two ounces of
cocaine, which the CI explained had just been provided to him by appellant.
Finally, on June 27, 2011, the CI made contact with appellant via text message
and in the presence of Trooper Baumgard. Arrangements were made for the CI to make
a controlled payment of $1,100 for the cocaine that had been fronted to him by appellant
on June 22, 2011. Following this meeting in appellant’s home, the CI advised Trooper
Baumgard that appellant had made statements indicating he would have a quantity of
cocaine and methamphetamine in his home on June 29, 2011. On the basis of all this
[J-83-2019] - 4
information — “including interviews conducted with the CI, purchases of controlled
substances, controlled monetary payments and information received from members of
the [PSP] involved with this investigation and others with expertise in the field of narcotics
investigations,” Affidavit of Probable Cause, 6/29/2011, at ¶47 — Trooper Baumgard
requested and obtained an anticipatory search warrant for appellant’s home.
The PSP executed the warrant at appellant’s home on June 29, 2011. The search
yielded 84.2 grams of cocaine and 99.64 grams of methamphetamine recovered from a
United American bank bag and a briefcase located in the master bedroom, as well as an
electronic digital scale and documentary proof establishing appellant lived at the home.
Appellant was subsequently charged with two counts each of possession of a controlled
substance and possession of a controlled substance with intent to deliver. 5
II. Procedural History
Appellant filed an omnibus pre-trial motion seeking suppression of all evidence
recovered from his home. Among a host of arguments raised in support of that endeavor,
appellant argued the wiretap order allowing the in-home recordings of his conversations
with the CI was invalid because it impermissibly permitted interception of conversations
for a thirty-day period, whereas, in his view, Section 5704(2)(iv) of the Wiretap Act allows
for only one intercept per authorizing order. See Omnibus Pre-Trial Motion, 3/22/2012,
at 3. As such, appellant further argued that “[a]ny alleged probable cause related to the
issuance of the search warrant in question was fatally tainted by the inclusion of evidence
related to the illegally . . . monitored conversations[.]” Id. at 6. The trial court denied
appellant’s suppression motion and the case proceeded to a stipulated non-jury trial.
Thereafter, the trial court found appellant guilty of all charges and sentenced him to forty
to eighty months’ incarceration.
5 35 P.S. §§780-113(a)(16), (30).
[J-83-2019] - 5
Appellant challenged the denial of his suppression motion on direct appeal. See
Commonwealth v. Katona, 191 A.3d 8, 11 (Pa. Super. 2018) (en banc), appeal granted,
200 A.3d 8 (Pa. 2019) (per curiam). As he did in his written motion, appellant argued that
since Section 5704(2)(iv)6 uses the term “interception” as phrased in the singular, an order
6 Section 5704 provides as follows, in relevant part:
§ 5704. Exceptions to prohibition of interception and disclosure of
communications
It shall not be unlawful and no prior approval shall be required under this
chapter for:
...
(2) Any investigative or law enforcement officer or any person acting at the
direction or request of an investigative or law enforcement officer to
intercept a wire, electronic or oral communication involving suspected
criminal activities, including, but not limited to, the crimes enumerated in
section 5708 (relating to order authorizing interception of wire, electronic or
oral communications), where:
...
(ii) one of the parties to the communication has given prior
consent to such interception. However, no interception under
this paragraph shall be made unless the Attorney General or
a deputy attorney general designated in writing by the
Attorney General, or the district attorney, or an assistant
district attorney designated in writing by the district attorney,
of the county wherein the interception is to be initiated, has
reviewed the facts and is satisfied that the consent is voluntary
and has given prior approval for the interception; however,
such interception shall be subject to the recording and record
keeping requirements of section 5714(a) (relating to recording
of intercepted communications) and that the Attorney
General, deputy attorney general, district attorney or assistant
district attorney authorizing the interception shall be the
custodian of recorded evidence obtained therefrom;
...
(iv) [or] the requirements of this subparagraph are met. If an
oral interception otherwise authorized under this paragraph
[J-83-2019] - 6
issued pursuant to that section authorizes only one intercept, as a matter of both statutory
and constitutional law. Id. at 15. With respect to this latter constitutional assertion,
appellant relied heavily on our decision in Commonwealth v. Brion, 652 A.2d 287, 289
(Pa. 1994) (declaring citizens have an expectation of privacy in conversations that occur
in their homes and that such conversations may not be intercepted without a prior
determination of probable cause by a neutral judicial authority).7 In appellant’s view, the
interception of each communication after the first one was analogous to multiple
executions of a single search warrant and, thus, amounted to an unconstitutional search.
Katona, 191 A.3d at 15.
The OAG disagreed with appellant on all fronts. As the OAG saw it, a proper
statutory analysis leads to the conclusion that a wiretap authorized under Section
5704(2)(iv) is effective for the same duration as a nonconsensual wiretap authorized
under Section 5708 of the Wiretap Act, which shall not exceed a period of thirty days. 18
Pa.C.S. §5712(b). From the OAG’s perspective, since the Wiretap Act permits a
will take place in the home of a nonconsenting party, then, in
addition to the requirements of subparagraph (ii), the
interception shall not be conducted until an order is first
obtained from the president judge, or his designee who shall
also be a judge, of a court of common pleas, authorizing such
in-home interception, based upon an affidavit by an
investigative or law enforcement officer that establishes
probable cause for the issuance of such an order. No such
order or affidavit shall be required where probable cause and
exigent circumstances exist. For the purposes of this
paragraph, an oral interception shall be deemed to take place
in the home of a nonconsenting party only if both the
consenting and nonconsenting parties are physically present
in the home at the time of the interception.
18 Pa.C.S. §5704(2).
7The Superior Court has previously explained that Section 5704(2)(iv) of the Wiretap Act
was added as a direct response to our opinion in Brion. Commonwealth v. Fetter, 770
A.2d 762, 766 (Pa. Super. 2001). We agree with this assessment.
[J-83-2019] - 7
nonconsensual wiretap for thirty days, it necessarily follows that a consensual recording
is constitutionally permissible for at least the same length. Katona, 191 A.3d at 15. The
OAG also highlighted the impracticalities of appellant’s interpretation, arguing it would
place an onerous burden on law enforcement by requiring them to seek a new order each
time the target of an investigation happened to momentarily step outside his residence
while the consenting party remained present. Id. Alternatively, the OAG maintained that
even if all interceptions made after the initial one were invalid, the search warrant was still
supported by probable cause wholly independent of the intercepted conversations. See
id. (“even if no recording device had been used in this case at all, the observations of the
Troopers and the information relayed to them by the CI . . . would still have established
probable cause”) (internal quotations and citation omitted). In other words, the OAG
believed that the firsthand observations of law enforcement and the CI provided an
independent, untainted source for the probable cause basis supporting the warrant.
Ultimately, the Superior Court determined the parties’ focus on the statutory text
of Section 5704(2)(iv) and our opinion in Brion overlooked a critical distinction: the fact
that appellant “seeks to suppress information, not the recordings.” Id. at 16 (emphasis
in original). After surveying the relevant federal law, the court explained that, for purposes
of the Fourth Amendment, “there is no constitutional issue when a person, such as the CI
herein, enters the home of a citizen and records the conversations” because “the speaker
has voluntarily disclosed information, and the speaker cannot claim a reasonable
expectation of privacy in either the information or a simultaneous recording of that
information.” Id. at 19 (emphasis in original); see also id. at 16-19 (discussing Hoffa v.
United States, 385 U.S. 293 (1966), Katz v. United States, 389 U.S. 347 (1967), and
United States v. White, 401 U.S. 745 (1971)).
[J-83-2019] - 8
The Superior Court then considered the greater protections afforded by Article I,
Section 8 of the Pennsylvania Constitution and, more specifically, our pronouncement in
Brion that there is an expectation of privacy in conversations that take place within one’s
home, such that they may be recorded only after a finding of probable cause by a neutral
judicial authority. See id. at 19-20. In this regard, the court deemed it significant that, in
contrast to the present appeal, Brion filed a timely motion to suppress the tape recording
of the transaction between himself and the informant in that case. See id. at 19. Given
this distinction, the Superior Court determined that, while Brion stands for the proposition
that a citizen has a reasonable expectation of privacy that his conversations will not be
recorded by his guests and that the actual recordings are thus subject to suppression, it
does not “invariably follow that the information itself is likewise subject to suppression.”
Id. at 20.
To bolster its position, the Superior Court relied upon our subsequent decision in
Commonwealth v. Rekasie, 778 A.2d 624 (Pa. 2001), wherein we “distinguished Brion
and permitted the introduction of the actual recorded conversations, based on the fact
that there was no reasonable expectation of privacy in the phone conversation.” Katona,
191 A.3d at 21; accord Rekasie, 778 A.2d at 632 (phone calls are “[q]ualitatively different
than a face-to-face interchange occurring solely within the home in which an individual
reasonably expects privacy and can limit the uninvited ear”). In the Superior Court’s view,
the present appeal presents an issue not addressed in Rekasie: whether a defendant is
entitled to suppression of the substance of a conversation that took place in his home,
assuming arguendo that the simultaneous recording of that conversation violated the
defendant’s constitutional rights as established in Brion. See id. at 22; see also id. (“More
specifically, the question is whether the affidavit of probable cause could lawfully include
the information learned from [a]ppellant’s conversations with the CI, even if the
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conversations were unlawfully recorded.”) (emphasis in original). The Superior Court
answered that question in the negative:
[W]e find that the Commonwealth received the information twice: once
when the CI told the officers that which [a]ppellant voluntarily disclosed, and
a second time when the CI performed a search by capturing [a]ppellant's
actual words on tape. Brion and the Pennsylvania Constitution dictate that
[a]ppellant had a reasonable expectation of privacy that his words would not
be recorded, but we find that [a]ppellant had no reasonable expectation of
privacy with respect to the information itself, which he freely disclosed to the
CI, who in turn relayed the information to the authorities.
Id. In short, the Superior Court “decline[d] to extend an expectation of privacy to the
information itself” because appellant “took the risk that the CI was acting on behalf of the
Commonwealth, and as a result had no reasonable expectation of privacy in what he said
and showed the CI.” Id. at 22-23 (citation omitted).
Having concluded the information itself was not suppressible, the Superior Court
proceeded to consider whether, after removing the allegedly illegal recordings from the
equation, the Commonwealth lawfully obtained everything else appellant relayed to the
CI — i.e., whether the information served as an independent source for the search
warrant. See id. at 23, citing Commonwealth v. Santiago, 160 A.3d 814, 827 (Pa. Super.
2017), aff’d, 209 A.3d 912 (Pa. 2019). Because the search warrant “did not rely upon
evidence derived from an unlawful wiretap, but rather the information disclosed to the
authorities, which happened to also be recorded[,]” the court found appellant’s voluntary
disclosures to the CI properly served as an independent source. Id. at 23. Consequently,
the Superior Court held suppression of the evidence was unwarranted.8
8 In reaching its conclusion, the Superior Court was careful to note it was not holding that
the multiple intercepts were consistent with Brion; given the court’s disposition, it also
declined to resolve the statutory issue concerning Section 5704(2)(iv). Instead, the court
merely acknowledged that the parties presented reasoned arguments respecting the
statutory issue and opined that the “lack of statutory direction on this point is a matter for
the Legislature.” Katona, 191 A.3d at 23.
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The Honorable Anne E. Lazarus, joined by the Honorable Jacqueline O. Shogan,
dissented. The dissent argued that the en banc majority’s application of the Independent
Source Doctrine was not appropriate because this Court has held that application of the
doctrine “‘is proper only in the very limited circumstances where the ‘independent source’
is truly independent from both the tainted evidence and the police or investigative team
which engaged in the misconduct by which the tainted evidence was discovered.’” Id. at
27 (Lazarus, J., dissenting), quoting Commonwealth v. Melendez, 676 A.2d 226, 231 (Pa.
1996). Given its determination that the present circumstances do not satisfy the demands
of Melendez, the dissent proceeded to analyze the propriety of the consensual wiretap
order and concluded a separate finding of probable cause was required for each in-home
intercept under Section 5704(a)(iv). See id. at 30.
We granted discretionary review to consider two issues: (1) whether the en banc
Superior Court’s decision “conflicts with and renders meaningless this Court’s definition
of the Independent Source Doctrine as set forth in [Melendez]”; and (2) if so, whether our
decision in Brion or Section 5704(2)(iv) of the Wiretap Act “require judicial approval (i.e.
a separate warrant or order) for each separate entry of either a law enforcement agent or
CI who is seeking to record private conversations within a defendant’s residence.”
Commonwealth v. Katona, 200 A.3d 8 (Pa. 2019) (per curiam).
III. Discussion
a. Arguments of the Parties
Appellant first argues the Superior Court’s application of the Independent Source
Doctrine to the facts of his case not only exceeds the bounds of the doctrine as previously
embraced by this Court’s precedents, but constitutes an “unwarranted expansion” of the
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doctrine altogether. Appellant’s Brief at 17.9 Echoing Judge Lazarus’s dissent below,
appellant emphasizes the fact that Melendez requires that the proposed alternative
source of evidence must be independent from both the tainted evidence and the police
or investigative team that engaged in the misconduct. See id. at 18-20 (discussing
Melendez, 676 A.2d at 257-58). Appellant finds it “difficult to see” how the Superior Court
could have determined the Melendez standard was met where “the same police who sent
the CI into [his] home to illegally record the multiple conversations were then allegedly
involved in debriefing the same CI[.]” Id. at 19-20. On a related note, appellant submits
the lower court was incorrect in its assertion that the record reflects that the CI was
debriefed by Trooper Baumgard or otherwise independently relayed any information
relating to the drug transactions that occurred in appellant’s home. See id. at 25-26. In
appellant’s telling, none of the paragraphs in the affidavit of probable cause, save for one,
“make a single reference to the CI discussing with the police what was said to him” while
present in appellant’s home. Id. at 26-27.
The OAG broadly counters that, regardless of the presence or absence of the
recordings, the warrant was supported by an independent probable cause basis as
reflected on the face of the affidavit. See OAG’s Brief at 9. With respect to Melendez in
particular, the OAG posits that, since that case dealt with the seizure of tangible evidence
which “can be seized only once and by only one means[,]” it is not an apt analogy to the
present circumstances. Id. at 11. Instead, the OAG directs us to our recent decision in
Santiago, supra, which the OAG reads to “stand for the proposition that if a piece of
information is obtained in two different ways, one of which is deemed permissible and
one of which is not, absent a showing that the improperly obtained information somehow
9For purposes of his first issue, appellant presumes his challenge to the validity of the
wiretap order is meritorious. We do the same.
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contaminated the untainted, suppression of this underlying information is not warranted.”
Id. at 13-14. Applying that understanding here, the OAG argues that while an illegal
wiretap could rightfully be excluded, “there is no basis for a blanket exclusion of the
information itself merely because one of multiple avenues by which it came into the
Commonwealth’s possession is subsequently deemed to have been improper.” Id. at 14;
see id. at 21 (“The fact that the [CI]’s interactions with [appellant] were also covertly
recorded pursuant to a court order should not be held to somehow retroactively strip the
police of the authority they undoubtedly had to send in an unwired informant if the court
order is subsequently deemed to have been improper.”). Finally, the OAG refutes
appellant’s claim that the affidavit does not independently establish probable cause when
stripped of all references to the recordings. According to the OAG, the affidavit “makes
clear not only that the [CI] did, in fact, verbally relay to law enforcement what was told to
him by [appellant] during their meetings, but that the [CI] also produced corroborating
physical evidence that he had obtained from [appellant].” Id. at 17. To that end, the OAG
points us to several paragraphs in the affidavit which it believes appellant has apparently
overlooked, and it concludes those paragraphs “clearly establish a nexus between
[appellant]’s residence and illegal activity.” Id. at 17-19.
b. Analysis10
In the first quarter of the twentieth century, the United States Supreme Court
announced what is now known as the Independent Source Doctrine. See Silverthorne
Lumber Co. v. United States, 251 U.S. 385, 392 (1920) (evidence discovered through
illegal means does not render the facts thus obtained “sacred and inaccessible”; rather,
10 Whether the Independent Source Doctrine presents a viable basis for affirming the
denial of appellant’s suppression motion presents a pure question of law over which our
standard of review is de novo and our scope of review is plenary. Santiago, 209 A.3d at
919.
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“[i]f knowledge of them is gained from an independent source they may be proved like
any others, but the knowledge gained by the Government’s own wrong cannot be used
by it in the way proposed”). Since then, the High Court has repeatedly reaffirmed the
doctrine’s sustainability, see, e.g., Nardone v. United States, 308 U.S. 338, 341 (1939),
and, more recently, has described its underlying rationale as follows:
[T]he interest of society in deterring unlawful police conduct and the public
interest in having juries receive all probative evidence of a crime are
properly balanced by putting the police in the same, not a worse, position
that they would have been in if no police error or misconduct had occurred.
When the challenged evidence has an independent source, exclusion of
such evidence would put the police in a worse position than they would have
been in absent any error or violation.
Nix v. Williams, 467 U.S. 431, 443 (1984) (internal citations and footnote omitted); see
also Murray v. United States, 487 U.S. 533, 542 (1988) (Independent Source Doctrine
rests “upon the policy that, while the government should not profit from its illegal activity,
neither should it be placed in a worse position than it would otherwise have occupied”).
To enforce that purpose, the Court has explained that “[s]o long as a later, lawful seizure
is genuinely independent of an earlier, tainted one . . . there is no reason why the
independent source doctrine should not apply.” Murray, 487 U.S. at 542.
Our most firm initial approval of the Independent Source Doctrine in Pennsylvania
appears in Commonwealth v. Melilli, 555 A.2d 1254 (Pa. 1989). There, citing Silverthorne
Lumber, we briefly stated that “[i[f the prosecution can demonstrate that the allegedly
tainted evidence was procured from an independent origin — a means other than the
tainted sources — the evidence will be admissible.” Melilli, 555 A.2d at 1262. It was not
until four years later, however, that we cemented the Independent Source Doctrine’s
place in our jurisprudence and adopted the specific teachings of Murray.
In Commonwealth v. Brundidge, 620 A.2d 1115 (Pa. 1993), a motel manager
allowed a state trooper to enter a guest room after the occupant’s registration had expired
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and a housekeeper discovered a suspicious diagram of the motel’s floor plan on the bed.
Once inside, the trooper observed indicia of criminal activity in plain sight. He then
proceeded to search the pockets of a jacket found inside of a protective bag in a closet.
After finding cocaine in one of the pockets, the trooper sought a warrant based on what
he observed in plain sight only. The warrant subsequently issued and the trooper seized
the items he observed in plain sight as well as the cocaine. The trial court denied
Brundidge’s motion to suppress the cocaine, and he was convicted of multiple drug-
related crimes. The Superior Court reversed, finding that although the entry into the motel
room did not infringe on Brundidge’s Fourth Amendment rights, the warrantless search of
the jacket did.
On appeal, we agreed with the Superior Court that while a guest in a motel or hotel
room has a legitimate expectation of privacy during the period of time it is rented, no such
expectation exists in the room or in any item in plain view to anyone readying the room
after checkout time for the next occupant. However, we also agreed that a motel guest
has a reasonable expectation of privacy in the contents of concealed personal effects
found in the room even after checkout time. Still, we refused to suppress the cocaine,
concluding that it was admissible under the Independent Source Doctrine as defined in
Murray. We explained that Murray devised a two-prong inquiry for determining whether
evidence is admissible under the Independent Source Doctrine: “(1) whether the decision
to seek a warrant was prompted by what was seen during the initial entry; and, (2) whether
the [issuing] magistrate was informed at all of the information.” Brundidge, 620 A.2d at
1119. Because the trooper did not mention the cocaine in the affidavit of probable cause
in support of the warrant, we concluded the cocaine would have been discovered by a
source independent of the initial illegality — i.e., the trooper’s execution of the valid search
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warrant. To hold otherwise, we remarked, “would put the police in a worse position than
they would have occupied if no violation had occurred.” Id. at 1120.
Shortly after we decided Brundidge, we considered the application of the Murray
standard in the context of an Article I, Section 8 challenge based on the warrantless
search of a residence. In Commonwealth v. Mason, 637 A.2d 251 (Pa. 1993), officers
surveilling an apartment as part of an undercover investigation into drug trafficking sent
a CI into the apartment to make a controlled purchase of cocaine. Upon his return, the
CI told the officers that he successfully completed the purchase, that there was more
cocaine present inside, and that multiple other persons were in the apartment making
similar illegal transactions. Based on this information, one officer left to obtain a search
warrant for the apartment while the others remained to continue their surveillance. Before
the officer returned with the warrant, another officer directed the team to forcibly enter the
apartment in order to secure the occupants and any evidence which might be present.
The officers found Mason inside the bathroom with her hands in the toilet bowl, next to
which they observed various drug paraphernalia. The officers also discovered cocaine in
plain view in one of the bedrooms. After the warrant arrived, the officers searched the
residence more thoroughly, discovering additional drugs, paraphernalia, and other indicia
of drug trafficking.
We granted review to consider whether the trial court properly rejected Mason’s
request for suppression based on a purported violation of Article I, Section 8. In that vein,
Mason urged that if we were inclined to recognize the Independent Source Doctrine in
our jurisprudence, we should impose “special limitations” on the doctrine “where private
dwellings are concerned and where police conduct is undertaken in bad faith.” Mason,
637 A.2d at 253. For its part, the Commonwealth countered that the Independent Source
Doctrine is compatible with the Pennsylvania Constitution and that we have previously so
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held. Id. Moreover, the Commonwealth claimed the doctrine clearly applied to the factual
circumstances at hand because the initial police entry did not taint the subsequent search
with the warrant, as the warrant was obtained through probable cause independent of the
initial police entry. Id.
Preliminarily, we agreed with the Commonwealth that the Independent Source
Doctrine applies in Pennsylvania, and we acknowledged that if Mason’s claim were made
strictly under the Fourth Amendment, we would be constrained to find that suppression
was not warranted. See id. at 254, citing Segura v. United States, 468 U.S. 796, 805
(1984) (where police forcefully entered a dwelling without a warrant and observed
contraband in plain view, suppression of the contraband not required where it was later
seized pursuant to a warrant obtained based on information which had nothing to do with
the warrantless entry; “it is clear from our prior holdings that ‘the exclusionary rule has no
application [where] the Government learned of the evidence ‘from an independent
source.’’”) (quoting Wong Sun v. United States, 371 U.S. 471, 487 (1963)). However, we
also recognized the precise question presented was whether the doctrine was applicable
“to these facts.” Id. at 255 (emphasis added). In that regard, we noted it is “axiomatic .
. . that once a judicially created rule is promulgated, the common law system requires that
appellate courts consider this rule in its various factual guises and expand or contract the
rule as justice requires.” Id. Along those lines, we further explained how the exact
significance of varying factual situations from case to case “is apparent only upon a more
detailed consideration of Pennsylvania’s view of the protections which have traditionally
been associated with the Fourth Amendment.” Id.
Our focus ultimately fell on the enhanced protections afforded by Article I, Section
8 of the Pennsylvania Constitution. We explained that unlike its federal counterpart,
which has a singular purpose of deterring police misconduct, Article I, Section 8 goes
[J-83-2019] - 17
further by “safeguard[ing] privacy and the requirement that warrants shall be issued only
upon probable cause[.]” Id. at 256. Taking into account the aims of Article I, Section 8
and the vastly different factual scenario presented,11 we held that “where police seize
evidence in the absence of a warrant or exigent circumstances by forcibly entering a
dwelling place, their act constitutes a violation of Article I, Section 8 . . . and items seized
pursuant to their illegal conduct may not be introduced into evidence in a subsequent
criminal prosecution.” Id. at 257; see id. at 256 (“Where the police battering ram is at the
door, without exigent circumstances and without a warrant, it is plain that the violent
shattering of the door constitutes an unconstitutional invasion of privacy of which every
person in this Commonwealth may complain.”).
Then-Justice Cappy concurred and wrote separately to express his continuing
disagreement with our prior decision in Brundidge, in which he dissented. In his view, an
expansive application of the Independent Source Doctrine contravenes the clear purpose
of Article I, Section 8 and “undermines the fundamental principle that the admissibility of
evidence discovered during a warrantless entry without exigent circumstances is the
exception to the rule rather than the rule itself.” Id. at 257 (Cappy, J., concurring)
(emphasis in original). According to Justice Cappy, the Independent Source Doctrine
should apply only in “the very limited circumstances where the ‘independent source’ is
truly independent from both the tainted evidence and the police or investigative team
11 Notably, we found “significant factual differences” between Brundidge and Mason:
First, in the present case, the place of invasion is a dwelling place, whereas
in Brundidge it was a motel room for which registration had expired; second,
the mode of entry in the present case was a battering ram, but in the
Brundidge case, the trooper simply walked through the open door; third, in
the present case, there was no reasonable explanation for battering down
the door before the warrant arrived, but in the Brundidge case, the trooper
entered the motel room after checkout time at the invitation of the manager.
Mason, 637 A.2d at 255 (footnote omitted).
[J-83-2019] - 18
which engaged in the misconduct by which the tainted evidence was discovered.” Id. at
257-58 (emphasis omitted). “Only such limitations on the doctrine,” he argued, “can
effectively protect from the possibility that police might engage in misconduct without fear
of consequence.” Id. at 258.
Only three years later, in Melendez, we revisited the application of the Independent
Source Doctrine in the context of a warrantless entry of a residence. In that case, as a
result of a three-week investigation into possible drug activity occurring within Melendez’s
house, officers at the scene communicated with officers at another location in an effort to
secure a search warrant for the premises. Before the warrant was obtained, Melendez
left the house, entered a vehicle, and began to drive away. The officers stopped her and
removed her from the car. A search of her purse revealed a handgun, a large amount of
cash, and what the officers described as a drug tally sales sheet. The officers then
transported Melendez back to her house and used her keys to gain entrance. Inside they
observed a man holding a bag of cocaine. The officers secured the residence and waited
for the search warrant for approximately an hour. When the warrant finally arrived, the
officers searched the house and found drugs, cash, and other evidence of criminal
activity. Melendez was subsequently convicted of various drug and gun charges after the
trial court denied her motion to suppress the evidence.
Melendez argued on appeal that the warrantless entry into her home was illegal,
thus requiring suppression of all evidence obtained pursuant to the search warrant.
Relevant for our purposes, the Superior Court held the evidence was admissible under
the Independent Source Doctrine. On further review, we disagreed. Citing Mason, we
explained that although our precedents recognize the Independent Source Doctrine, the
forcible entry into a dwelling place without a warrant or exigent circumstances violates
Article I, Section 8. Melendez, 676 A.2d at 231. We further saw fit to adopt the limitations
[J-83-2019] - 19
proposed by Justice Cappy in Mason, and held that application of the Independent Source
Doctrine is proper only “‘in the very limited circumstances where the ‘independent source’
is truly independent from both the tainted evidence and the police or investigative team
which engaged in the misconduct by which the tainted evidence was discovered.’” Id.,
quoting Mason, 637 A.2d at 257-58. Applying that new rule to the facts in Melendez, we
concluded the Independent Source Doctrine did not apply, as there was no source of
evidence that was truly independent of either the tainted evidence or the police who
engaged in the misconduct. We explained,
Government agents may not enter private dwellings through the use of
battering rams as in Mason, or by effecting illegal stops and seizures as in
this case, and secur[ing] the premises . . . while police wait to learn whether
their application for a warrant has been approved. It is difficult to imagine
practices more inimical to the fundamental idea that no person shall be
subject to unreasonable searches and seizures.
Id. at 231-32.
As the above cases demonstrate, this Court has occasionally refined the contours
of the Independent Source Doctrine’s applicability in this Commonwealth to account for
novel factual circumstances in claims arising under our state charter. While we initially
paralleled the federal analysis, through our decisions in Mason and Melendez, we have
imposed additional constraints on the doctrine’s applicability to safeguard our citizens’
right to privacy in their dwellings, particularly where police violate those rights though
intentional misconduct. However, the parties and the Superior Court in this case have all
overlooked yet another important decision in this evolving line of jurisprudence: our
decision in Commonwealth v. Henderson, 47 A.3d 797 (Pa. 2012). For the reasons that
follow, we conclude our decision in Henderson is dispositive of this matter.
The circumstances in Henderson involved application for a search warrant to
obtain DNA from the defendant, Calvin Henderson, a suspect in a violent rape-kidnapping
case. A detective with the sexual assault unit prepared an affidavit in support of probable
[J-83-2019] - 20
cause, secured a magistrate’s approval of a search warrant, and collected samples of
Henderson’s DNA, which ultimately implicated him in the crimes. After his arrest,
Henderson lodged a pretrial motion to suppress on the ground that the detective’s affidavit
was insufficient to establish probable cause. The motion evidently raised concerns on
the prosecution’s part, as a decision was made to secure a second warrant with the intent
of invoking the Independent Source Doctrine. To that end, another detective within the
sexual assault unit was tasked with undertaking a probable-cause investigation to support
a second search warrant. The second detective spoke with the first detective, reviewed
the existing case file and medical records, inquired into Henderson’s background, and
interviewed one collateral witness. He then applied for and secured a second warrant to
seize additional blood samples from Henderson. Henderson responded by filing a second
suppression motion in which he alleged the second warrant was not the product of an
independent source. After the trial court denied suppression, Henderson was convicted
of the charged offenses and the Superior Court affirmed on appeal.
We granted review to consider “whether the independent source doctrine validates
a serial search warrant obtained from a second investigation conducted by a police officer
from the same department.” Henderson, 47 A.3d at 800. The Court, in an opinion
authored by then-Justice (now-Chief Justice) Saylor and joined in full by former Chief
Justice Castille and former Justices Eakin and McCaffery,12 noted the Commonwealth did
not contest that the second investigation failed to meet the Melendez requirement of “true
independence,” but nevertheless “advocate[d] the application of a less exacting standard
to circumstances that do not involve a knowing circumvention of a suspect’s constitutional
rights through intentional police misconduct.” Id. at 802. The Commonwealth urged us
12As discussed in more detail infra, Justice Todd concurred in the result and authored a
concurring opinion in which Justice Baer joined. Former Justice Orie Melvin did not
participate in the consideration or decision of the case.
[J-83-2019] - 21
to conclude the appropriate standard in the absence of police misconduct is the two-part
inquiry initially set forth in Murray and adopted by this Court in Brundidge. See Brundidge,
620 A.2d at 1119 (application of Independent Source Doctrine depends on “(1) whether
the decision to seek a warrant was prompted by what was seen during the initial entry;
and, (2) whether the magistrate was informed at all of the information”).
In considering the Commonwealth’s request for refinement of the Melendez
standard, the Court first acknowledged that former Chief Justice Cappy, the architect of
the independent-investigative-team requirement, plainly intended “the requirement of true
independence . . . to have meant just that.” Henderson, 47 A.3d at 803. The Court also
recognized the “sincere intentions underlying the innovation” of the rule, which was bred
out of “a heartfelt desire to vindicate the privacy interests of Pennsylvania citizens against
unlawful government conduct.” Id. Nevertheless, the Court explained that since “the
independent source doctrine lies outside the terms of the Pennsylvania Constitution, the
embellishments of Mason and Melendez represented a form of prophylactic judicial
lawmaking[.]” Id.; see also Mason, 637 A.2d at 255 (“It is axiomatic, of course, that once
a judicially created rule is promulgated, the common law system requires that appellate
courts consider this rule in its various factual guises and expand or contract the rule as
justice requires.”). As such, the Court determined it was free “to consider whether the
broader pronouncements made there are as sensibly applied elsewhere, as new fact
patterns are presented diverging from those before the Court in Mason and Melendez.”
Id.; see id. (“the experience with broadly stated prophylactic rules often has been that
they cannot be sustained on their original terms”).
The Court proceeded to reassess the value of the Melendez requirements as
applied to the facts in Henderson, and concluded it was “unwilling to enforce a ‘true
independence’ rule in the absence of police misconduct and on pain of the
[J-83-2019] - 22
Commonwealth being forever barred from obtaining non-evanescent evidence
connecting [the defendant] with his crimes.” Id. at 804. The Court held:
[I]n light of the factual circumstances before the Court in both Melendez and
Mason, we deem it appropriate to limit the independent police team
requirement to situations in which the rule prevents police from exploiting
the fruits of their own willful misconduct. Where such malfeasance is not
present, we agree with the Superior Court that the Murray standard strikes
the appropriate balance between privacy and law enforcement. Ultimately,
we believe the ‘twin aims’ of Article I, Section 8 — namely, the safeguarding
of privacy and enforcement of the probable-cause requirement — may be
vindicated best, and most stably, by taking a more conservative approach
to the departure this Court has taken from the established Fourth
Amendment jurisprudence.
Id. at 805 (internal citations and footnote omitted). In reaching this conclusion, the Court
explained “[t]he greatest difficulty in the enforcement of a prophylactic rule intended to
guard individual liberties is on account of the competing value in society’s interest in
identifying and punishing wrongdoers[,]” which, among other ways, “is manifested in the
context of the independent source rule in the courts’ reluctance to put police in a worse
position than they were in prior to an irregularity.” Id. at 804.13
13 As noted, Justice Todd authored an opinion concurring in the result but departing from
the majority’s decision to “radically constrict the applicable scope of [the Melendez] rule
to only those limited instances in which police engage in the specific egregious police
misconduct which was exhibited in those cases — namely, battering down the door of an
apartment with a battering ram without probable cause (Mason), or unlawfully seizing the
owner of a house and using her key to gain entry to her house (Melendez).” Henderson,
47 A.3d at 809; see also id. at 810 (“the majority has truncated the Mason/Melendez rule
in a sweeping and prospective fashion so that it will henceforth apply only to those narrow
subset of cases in which police conduct amounts to ‘willful misconduct’ or ‘malfeasance’”).
In Justice Todd’s view, the second blood tests obtained through the execution of that
warrant were admissible even under the Melendez rule and, therefore, there was “no
justification to re-asses this rule, as the majority has done.” Id. at 817.
Former Chief Justice Castille authored a separate concurring opinion which he explained
was “primarily to respond to” Justice Todd’s concurring opinion and her support for
“extension of the Melendez rule . . . to embrace factual circumstances . . . where there
was no police misconduct.” Henderson, 47 A.3d at 806 (Castille, C.J., concurring). In
this regard, Chief Justice Castille expressed his view that there was no police violation or
misconduct at all because “[a] judicial officer erred, as judicial officers occasionally do, in
[J-83-2019] - 23
In sum, Henderson confirms the continued viability of the Melendez requirements
but limits their application to cases of “willful misconduct” or “malfeasance”; absent such
circumstances, “the Murray standard strikes the appropriate balance between privacy and
law enforcement.” Id. at 805.14 The relevant question we must answer first, then, is
assessing probable cause for the first warrant. That judicial error did not operate to taint
the police ‘investigative team.’” Id. at 808. Moreover, Chief Justice Castille argued that,
to the extent Melendez purported to speak to circumstances not involving police
misconduct (such as those in Henderson), “its prophylactic rule was, by definition, obiter
dicta.” Id. at 807.
14 The dissent goes to great pains to resist Henderson’s application to this case. Among
other things, the dissent: implies we have strayed from the proper bounds of the question
presented, see, e.g., Dissenting Op. at 19 (“[t]he Majority does not answer the question
as presented”); casts doubt on the reach of Henderson’s limitation on Melendez, while at
the same time offering veiled criticisms of the former’s underlying rationale, see, e.g., id.
at 23 (“I fail to see why Henderson should be read to replace one per se rule with
another”); remarks we have “exten[ded]” Henderson’s holding and adopted a new bright-
line rule, id. at 26; suggests Henderson is merely distinguishable from the instant case,
see, e.g., id. at 26 (“[u]nlike Henderson this case involves a pure Article I, Section 8
claim”); and contends our decision is at odds with our prior rejection of the good faith
exception to the exclusionary rule, see, e.g., id. at 27 (“applying Henderson under these
circumstances would severely diminish the force of [Commonwealth v. Edmunds, 586
A.2d 887, 899 (Pa. 1991)], which refused to adopt the ‘good faith’ exception to the
exclusionary rule under Article I, Section 8”). Respectfully, we find this litany of arguments
unpersuasive.
Initially, as the dissent itself concedes, whether the Independent Source Doctrine applies
presents a question of law, see id. at 2, and since “Henderson is part of our jurisprudence
. . . we must apply the law as we have developed it.” Id. at 19. We therefore reject the
notion we have somehow exceeded the proper bounds of review by invoking Henderson.
We likewise reject the dissent’s attempts to minimize, discredit, and distinguish the rule
announced in Henderson. The Henderson majority, over a forceful concurring opinion
authored by Justice Todd, unequivocally “deem[ed] it appropriate to limit the independent
police team requirement to situations in which the rule prevents police from exploiting the
fruits of their own willful misconduct.” 47 A.3d at 805; see id. at 804 (“[W]e are unwilling
to enforce a ‘true independence’ rule in the absence of police misconduct[.]”). Although
the dissent would have us hold these statements do not rise to the level of a categorical
rule because earlier in the opinion we used the phrase “[i]n the present circumstances,”
id., there is nothing limiting or remarkable about such a statement; it merely reflects the
reality that, as in most search and seizure matters, our understanding of the law is shaped
by the particular facts at hand. See generally Commonwealth v. Smith, 77 A.3d 562, 571
(Pa. 2013) (recognizing “the very wording of the constitutional protection lends itself to
[J-83-2019] - 24
whether the conduct at issue herein constitutes “willful misconduct” or “malfeasance” on
the part of the police, thereby bringing this case under the purview of the Melendez
requirements. Id. We conclude it does not.
The only “misconduct” appellant alleges in this case is that “six separate ‘seizures’
or intercepts were made at [his] home on six separate dates over a period of six weeks
examinations of particular facts and circumstances in individualized cases”). As such,
the dissent’s portrayal of our decision herein as extending Henderson or adopting a new
bright-line rule, is mistaken.
More foundationally, the dissent’s various arguments concerning the exclusionary rule,
the good faith exception rejected by this Court in Edmunds, and principles of deterrence
all completely miss the legal mark. The reason is simple: “[T]he exclusionary rule has
no application [when] the Government learn[s] of the evidence ‘from an independent
source[.]’” Wong Sun v. United States, 371 U.S. 471, 487 (1963) (emphasis added),
quoting Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920). See also
Henderson, 47 A.3d at 806 n.2 (Castille, C.J., concurring) (“The independent source
doctrine does not involve an exclusionary rule ‘exception,’ such as the good faith
exception, but a question of taint from prior illegality, which implicates principles of
independence and attenuation. It is not an ‘exception’ to the exclusionary rule to admit
untainted evidence; no rational application of an exclusionary rule would exclude
untainted evidence.”). It should therefore go without saying that if the exclusionary rule
has no application to this case, then it matters not that “‘privacy, rather than deterrence,
is the primary reason for our exclusionary rule.’” Dissenting Op. at 24, quoting
Commonwealth v. Britton, 229 A.3d 590, 611 n.8 (Pa. 2020) (Wecht, J., concurring).
Along those lines, we disagree with the dissent that our decision in Henderson, or in this
matter, ignores the holding in Edmunds. See State v. Betancourth, 413 P.3d 566, 574
(Wash. 2018) (expressly rejecting a claim that the Independent Source Doctrine operates
as some sort of “guise for importing a good faith” test into state constitutional analyses);
see also Commonwealth v. Ruey, 892 A.2d 802, 819 n.3 (Pa. 2006) (Saylor, J.,
concurring, joined by Castille, C.J.) (applying the Independent Source Doctrine under the
particular circumstances was not “in conflict with this Court’s decisions eschewing a
generalized good faith exception to the exclusionary rule[,]” even though it appeared to
contain a good faith component). On a final related note, we disagree with the dissent
that “this case involves a pure Article I, Section 8 claim[,]” id. at 26, and that “Article I,
Section 8 was always at issue[.]” Id. at 27 n.10. Our review of the record reveals appellant
has never suggested Article I, Section 8 constrains our application of the Independent
Source Doctrine — at least not beyond those prophylactic limitations discussed in the
cases above. Through its failure to acknowledge this point, the dissent erroneously
minimizes the Fourth Amendment’s relevance to its analysis while simultaneously
overemphasizing Article I, Section 8’s heightened privacy protections.
[J-83-2019] - 25
on the basis of one showing of probable cause[.]” Appellant’s Brief at 11. As earlier
noted, these recordings were made pursuant to a judicially-authorized order following a
probable cause determination. From appellant’s perspective, this order “was invalid”
because Section 5704(2)(iv) of the Wiretap Act supposedly only authorizes one intercept
per showing of probable cause. Appellant’s Brief at 18. Thus, appellant reasons, the six
recordings made after the initial recording were unauthorized, “[a]nd it was these several
constitutionally and statutorily improperly recorded events . . . that provide[d] essentially
all of any relevant probable cause contained in the search warrant affidavit for [his]
home[.]” Appellant’s Brief at 37.15
Plainly, the “misconduct” alleged in this case is not remotely within striking distance
of the egregious misconduct at issue in Mason and Melendez. Cf. Henderson, 47 A.3d
at 802 n.9 (“Mason involved an illegal invasion into a private dwelling via the use of a
battering ram. Melendez strongly disapproved a police strategy of creating an ‘exigency’
by arresting one person outside of a home, then using the arrest as an excuse to enter
the premises illegally[.]”) (internal citations omitted). In fact, even assuming arguendo
that appellant’s interpretation of Section 5704(2)(iv) is the correct one, it is still hard to
see precisely how the police engaged in any misconduct whatsoever when they were
operating pursuant to a court order; if anything, as in Henderson, the “error” here was
“judicial,” insofar as a court order explicitly permitted unlimited interceptions of appellant’s
communications for a period of thirty days. See id. at 808 (Castille, C.J., concurring)
(positing that judicial errors do not “taint the police ‘investigative team’”). But regardless
of whether the alleged error here falls at the feet of the judiciary or law enforcement, the
15 Specifically, appellant claims the recordings made on the following dates were
unauthorized: May 20, May 25, May 31, June 9, June 22, and June 27, 2011; he does
not challenge the first recording made on May 16, 2011. See Appellant’s Brief at 11.
[J-83-2019] - 26
fact remains that this case does not involve any “willful misconduct” or “malfeasance” at
all. Instead, as the OAG succinctly explains,
the police sought and were granted a court order authorizing an in-home
recording, meaning they had sought and were operating under what they
believed to be a valid authorization for their activities. The observed or
anticipated pattern of rogue and/or bad faith conduct on the part of the
police that this Court was clearly so intent on stamping out in Melendez
through its restrictive interpretation of the independent source doctrine is
therefore not present here.
OAG’s Brief at 22. Consequently, since this matter does not fall into the narrow subset
of cases involving police conduct which amounts to “willful misconduct” or “malfeasance,”
the Melendez requirements are inapplicable.16
Harkening back to the Murray standard, we must now determine “(1) whether the
decision to seek a warrant was prompted by what was seen during the initial entry; and,
(2) whether the magistrate was informed at all of the information.” Brundidge, 620 A.2d
at 1119; accord Murray, 487 U.S. at 542 (“The ultimate question . . . is whether the search
pursuant to warrant was in fact a genuinely independent source of the information and
tangible evidence at issue here. This would not have been the case if the agents’ decision
16 The dissent at one point asserts that “[e]xclusion of the evidence is the price that must
be paid to protect [appellant’s] privacy rights.” Dissenting Op. at 28; see also id. at 22
(arguing “no relief is forthcoming because the Majority holds that the officers could have
secured the same evidence even without the recordings”). We stress that the issue in
this appeal concerns the Independent Source Doctrine and, in particular, its application
with respect to the search warrant, not the recordings themselves. Below, the en banc
Superior Court majority appreciated this distinction, as well as the fact that if appellant’s
Article I, Section 8 rights were actually violated (a question not reached by that court), he
would undoubtedly be entitled to suppression of the recordings themselves, which “is no
mere constitutional consolation prize.” Katona, 191 A.3d at 24; see also id. (“playing a
recorded statement of [a]ppellant’s own words, in his own voice, [would be] far more
probative and damaging than offering a [confidential informant’s] testimony as to the
substance of the conversations”). Since it is apparent that there already exists a full
remedy for those purported violations, the real result of the dissent’s view is that it would
double those consequences — it would require suppression of not only the recordings
themselves, but also of any evidence discovered pursuant to the search warrant, even if,
as we conclude below, the warrant served as an untainted and independent source.
[J-83-2019] - 27
to seek the warrant was prompted by what they had seen during the initial entry, or if
information obtained during that entry was presented to the Magistrate and affected his
decision to issue the warrant.”) (footnote omitted). To answer these questions, we need
not look beyond the four corners of the affidavit of probable cause.
As noted at the outset, the affidavit in this case is exceedingly long and detailed.
Given its length, it is not practical to reproduce the entirety of it here. In any event, doing
so is unnecessary as the last few paragraphs alone are illustrative of the affidavit as a
whole and dispositive of the questions above. For example, the affidavit states:
42. On June 22, 2011, Trooper James Aughinbaugh and Trooper Jeff
Mermon met with the CI. Preparations were made with the CI to make a
controlled payment of $1100.00 to [appellant] for the Cocaine fronted to the
CI on June 15, 2011. In addition this meeting was also to prepare the CI to
make another 2 (two) ounce quantity purchase of Cocaine from [appellant].
In the presence of [ ] Trooper Jeff Mermon, the CI made contact with
[appellant] by sending him a text message. A response received from
[appellant] lead [sic] investigators to believe that he would be at home. After
searching the CI and his vehicle, he was provided with $1100.00 in Official
Funds, provided with a recording device and followed to [appellant]’s
residence at 113 Ember Lane Hermine PA. Surveillance was conducted in
the area by members of PSP during the time of the payment and purchase
of Cocaine at [appellant]’s residence. After leaving [appellant]’s residence
the CI was followed to a predetermined location. Once there the recording
device was retrieved from the CI. Additionally the CI produced 4 (four)
vacuum sealed plastic bags containing a white substance, which the
CI identified as 2 (two) ounces of Cocaine provided to him by
[appellant]. A search of the CI and his vehicle was conducted prior to
departing.
...
44. On June 27, 2011 your affiant and Trooper Aughinbaugh met with
the CI. Preparations were made with the CI to make a controlled payment
of $1100.00 to [appellant] for the Cocaine fronted to the CI on June 22,
2011. In the presence of your affiant, the CI made contact with [appellant]
by sending him a text message. A response received from [appellant] lead
[sic] investigators to believe that he would be at home. After searching the
CI and his vehicle, he was provided with $1100.00 in Official Funds,
provided with a recording device and followed to [appellant]’s residence at
113 Ember Lane Herminie PA. Surveillance was conducted in the area by
members of PSP during the time of the payment at [appellant’s] residence.
[J-83-2019] - 28
After leaving [appellant]’s residence the CI was followed to a predetermined
location. Once there the recording device was retrieved and a search of the
CI and his vehicle was conducted. The CI advised that in addition to
other conversation [appellant] made statements leading him to believe
that he ([appellant]) would be have [sic] a quantity of Cocaine and
Methamphetamine at his ([appellant]’s) house on Wednesday
(6/29/11).
...
47. Based on the aforementioned information, including interviews
conducted with the CI, purchases of controlled substances, controlled
monetary payments and information received from members of the
Pennsylvania State Police involved with this investigation and others
with expertise in the field of narcotics investigations, which is believed
to be true and correct, your affiant believes there is probable cause
supporting the fact that [appellant] is involved with the possession, sale, and
distribution of controlled substances particularly Cocaine and
Methamphetamine, from his residence of 113 Ember Lane Herminie PA.
Affidavit of Probable Cause, 6/29/2011 (underlining and bolding added).
With respect to whether the Commonwealth’s decision to seek a search warrant
was prompted by what it learned from the allegedly improper recordings, see Brundidge,
620 A.2d at 1119, that question is squarely answered by the bolded contents in paragraph
47 of the affidavit. Notably, Trooper Baumgard explicitly stated he was seeking the
warrant based on, inter alia, interviews with the CI and the results of multiple controlled
buys that he and his team had conducted over the course of more than a month. Even
more pointedly, paragraph 44 explains that on June 27, 2011, the CI “advised” Trooper
Baumgard, i.e., personally told him, that appellant had made statements indicating he
was going to have drugs at his house on June 29, 2011. Trooper Baumgard’s own
attestations therefore prove the decision to obtain a search warrant for appellant’s home
on June 29, 2011, was prompted not by any recording made by the CI, but instead by the
totality of the evidence he and his team collected over the course of their long-running
investigation. As further support, we observe that earlier portions of the affidavit also
explain that Trooper Baumgard and his team began investigating appellant for suspected
[J-83-2019] - 29
drug dealing prior to the CI making any recordings. See id. at ¶22 (“in the days leading
up to the events of May 16, 2011 several instances became known which suggested that
[appellant] was currently involved with the sale and distribution of Cocaine”). In light of
these various averments, it simply cannot be said that the Commonwealth’s decision to
seek a search warrant was prompted by the allegedly illegal recordings made by the CI.
See Murray, 487 U.S. at 542 n.3 (“To determine whether the warrant was independent of
[the alleged illegality], one must ask whether it would have been sought even if what
actually happened had not occurred[.]”).
Resolving the next inquiry — whether the magistrate was informed at all of the
allegedly improper recordings, see Brundidge, 620 A.2d at 1119 — is a marginally more
difficult task. As the underlined portions in paragraphs 42 and 44 above demonstrate, at
times the affidavit did reveal to the magistrate that the CI recorded certain conversations
with appellant. But, it seems obvious from the underlined passages that such references
merely relayed the factual progression of the investigation from the vantage point of
Trooper Baumgard, and the affidavit did not otherwise purport to set forth the contents of
any of those recorded conversations. Indeed, the only conversations detailed in the
affidavit are those that the CI personally relayed to Trooper Baumgard or other members
of his investigative team. See, e.g., ¶26 (“The CI said he then left [appellant]’s residence
and immediately called to inform your affiant of the situation”); id. at ¶34 (“The CI related
that he purchased the ‘Pagan’ shirts from [appellant] and during their conversation
[appellant] retrieved the clear bag that contained two ounces of Cocaine from a blue
‘money bag.’ The CI went on to relate that [appellant] told him he wanted $1100.00 per
ounce for a total of $2,200 for the Cocaine.”); id. at ¶42 (“Additionally the CI produced 4
(four) vacuum sealed plastic bags containing a white substance, which the CI identified
as 2 (two) ounces of Cocaine provided to him by [appellant].”); id. at ¶44 (“The CI advised
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that . . . [appellant] made statements leading him to believe” appellant would have drugs
at his “house on Wednesday (06/29/11).”).17 Under these circumstances, it would be
unreasonable to conclude the vague and brief references to the CI being “provided with
a recording device” and law enforcement subsequently “retrieving” those recordings, in
any way “affected [the magistrate’s] decision to issue the warrant.” Murray, 487 U.S. at
542. Accordingly, we conclude the second prong of Murray is also met.
As the two-part inquiry established in Murray has been satisfied, we agree with the
Superior Court that the Independent Source Doctrine may provide a basis for affirming
the trial court’s denial of appellant’s motion to suppress the evidence recovered from his
house.18 The only question that remains is whether the affidavit, when stripped of all
references to the allegedly improper recordings, provided the magistrate with probable
cause to issue the warrant. See, e.g., Edmunds, 586 A.2d at 899 (“The linch-pin that has
been developed to determine whether it is appropriate to issue a search warrant is the
test of probable cause.”) (internal citation and quotation omitted); see also
Commonwealth v. Weidenmoyer, 539 A.2d 1291, 1296 (Pa. 1988) (“the presence of some
improper information in [an] affidavit is not enough to invalidate the search warrant if the
warrant is also based upon other competent sources and is sufficient to constitute
17 These quotations directly refute appellant’s claim that in all but one paragraph of the
affidavit there is not “a single reference to the CI discussing with the police what was said
to him in his meeting[s] . . . at [appellant]’s house.” Appellant’s Brief at 26-27.
18 We do, however, depart from the Superior Court’s analysis in some respects. Whereas
the Superior Court “dr[e]w a distinction between a search of those words as contained
within the recordings versus a ‘search’ occasioned by the [CI] hearing the words” and
concluded appellant had no reasonable expectation of privacy in the actual substance of
his conversations, Katona, 191 A.3d 23 n.11, we find it unnecessary to explore this issue
further for purposes of this appeal. While the Superior Court’s discussion of our decisions
in Brion and Rekasie presents a thoughtful and compelling rationale in support of its view,
the instant matter can more simply be resolved through a straightforward application of
Henderson and Murray.
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probable cause”) (citations omitted). The parties dispute whether this standard has been
met. Compare Appellant’s Brief at 46-47 (“[w]hen [paragraphs 30-34, 38, and 41-44] are
redacted from the affidavit, no present probable cause exists”) with OAG’s Brief at 17-19
(contending paragraphs 23, 26, 34, 42, 44, and 47 “clearly establish a nexus between
[appellant]’s residence and illegal activity”). We have little hesitation in agreeing with the
OAG that the affidavit, even absent all references to the recordings, provided ample
probable cause supporting issuance of the search warrant.
As previously noted, multiple paragraphs reveal that the CI successfully completed
controlled drug buys at appellant’s house, after which the CI turned over the drugs to the
police, who had surveilled the encounters. See, e.g., Affidavit of Probable Cause,
6/29/2011, at ¶¶34, 42. Other paragraphs disclose that the CI personally informed the
investigative team of the conversations he had with appellant concerning the drug buys.
See, e.g., ¶¶34, 44. As well, and as appellant rightfully concedes, all evidence pertaining
to the events occurring on May 16, 2011 — the first date on which the CI recorded his
interaction with appellant — was properly obtained and therefore must also be considered
in the probable cause analysis. Relevantly, the affidavit provides:
26. The CI described the location of the bedroom as being in front of
them as they reached the top of the steps. Once inside the bedroom the CI
described a dresser on the right side of the room; [appellant] reached into
the third drawer of the dressed and produced a yellowish colored envelope
with two plastic ziplock bags inside. The CI asked [appellant] what as in the
bag and [appellant] responded by saying “a ½ pound of coke.” The CI told
[appellant] that he/she would take two of those (meaning two ounces of
cocaine) and [appellant] told him/her to take all of it. The CI recalled
[appellant] saying something to the effect of “I just got this for you cause I
knew you were unhappy with Tony’s stuff being too expensive and
‘whacked.’” The CI added that he told [appellant] that they did not want that
much cocaine at one time but instead only wanted a couple of ounces.
[Appellant] told the CI to take it anyway. The CI said [appellant] quoted the
price of $9800.00 for the cocaine. Additionally the CI said the two spoke
about the CI’s ability to pay [appellant] for the cocaine. [Appellant] said he
wanted $4000.00 or $5000.00, preferably $5000.00 paid to him later that
night because he was leaving town. Additionally [appellant] said he would
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let the rest “ride” for a little while. (Meaning, he agrees to be paid at a later
date.) The CI said he then left [appellant]’s residence and immediately
called to inform your affiant of the situation.
Id. at ¶26. And, perhaps most importantly, Trooper Baumgard attested in paragraph 44
that the CI “advised that . . . [appellant] made statements leading him to believe” appellant
would have drugs at his “house on Wednesday (06/29/11).” Id. at ¶44. The totality of this
information was easily sufficient to establish probable cause for an anticipatory search
warrant of appellant’s home.
In conclusion, we reaffirm Henderson’s limitation on Melendez. That limitation is
particularly warranted as applied to the factual circumstances of this case so as to avoid
“put[ting] police in a worse position than they were in prior to an irregularity.” Henderson,
47 A.3d at 804; see also Sutton v. United States, 267 F.2d 271, 272 (4th Cir. 1959) (“It is
one thing to say that officers shall gain no advantage from violating the individual’s rights;
it is quite another to declare that such a violation shall put him beyond the law’s reach
even if his guilt can be proved by evidence that has been obtained lawfully.”). As the
OAG persuasively offers, “[t]o hold otherwise would confer undue benefit on a perpetrator
of illegal activities and impose an unfair penalty on law enforcement and, by extension,
society.” OAG’s Brief at 23. We agree and therefore affirm the Superior Court’s
application of the Independent Source Doctrine in this matter.19
19 Given our conclusion that the search warrant was valid and served as an independent
source for the evidence obtained from appellant’s house, we do not reach the issue of
whether an order obtained under Section 5704(2)(iv) of the Wiretap Act permits unlimited
interceptions for a period of thirty days. In this respect, we reiterate that appellant has
raised both statutory and constitutional grounds in support of that claim. See, e.g.,
Appellant’s Brief at 15. Like the en banc Superior Court majority, we find that resolution
of this second issue — on either statutory or constitutional grounds — is unwarranted in
light of our disposition of the first issue. At the same time, however, we note that we too
share in the Superior Court’s observation that there is a certain lack of statutory direction
on this point, and that additional legislative guidance in this area would be beneficial.
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Chief Justice Saylor and Justices Baer and Todd join the opinion.
Justice Mundy files a concurring opinion.
Justice Donohue files a dissenting opinion in which Justice Wecht joins.
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